GNC Intends to Sue Fox Over Rejected Super Bowl Spot

GNC has sent Fox Broadcasting Co. a letter of intent, saying it plans to pursue legal action against the company, claiming it suffered "significant economic and reputational damages, lost opportunities, and consequential damages" because Fox rejected its Super Bowl ad after clearing it.

The document, obtained by Advertising Age, is addressed to Fox Exec VP-General Counsel Rita Tuzon, and is signed by Leon DeJulius of Jones Day law firm on behalf of GNC.

On Monday, Ad Age reported that GNC's Super Bowl commercial, which was part of the company's huge rebranding effort, had been rebuffed by the National Football League four days after Fox cleared it in writing. Jeff Hennion, exec VP-chief marketing and e-commerce officer at GNC, said at the time that the NFL objected to its commercial because fewer than 3% of its products include two of the 162 substances banned by the league. According to Mr. Hennion, the NFL has approval rights over commercials in the big game.

According to the letter of intent dated today, Fox sold GNC a 30-second spot during the game's first quarter and "induced GNC to spend millions of dollars in production costs and in the development of a national, coordinated marketing and rebranding campaign centered around this advertisement."

"Fox did not inform GNC that the NFL had to approve GNC's advertisement nor did Fox indicate that the NFL had a specific advertisement policy," the document states. "To the contrary, Fox expressly approved the content of GNC's advertisement two separate times."

The document also alleges that Fox began promoting the benefits of Super Bowl advertising to GNC in, "at the latest, November 2016," with one representative telling the brand that Super Bowl advertisers "'on average garner more than 11% sales uplift in the month following the game,'" and that one Super Bowl spot "generates as much sales as 250 regular TV spots.'"

The Fox representative, according to the document, did not inform GNC that it was banned from NFL programming or subject to any NFL ad policy. "In reliance on these representations, GNC purchased a first-quarter spot in Super Bowl LI for several million dollars," the letter reads.

Additionally, the document brings attention to the fact that GNC closed all of its 4,400 stores nationwide on Dec. 28 as part of its rebranding strategy tied to the Super Bowl commercial. It also states that GNC participated in "a video production by Ad Age Magazine regarding the making of a Super Bowl commercial and made arrangements to feature the spot in exclusive stories in USA Today and other media that would be embargoed until Tuesday, Jan. 31."

"Please consider this letter a notice that further legal action is anticipated and take appropriate steps to preserve all potentially relevant documents and electronically stored information," the letter reads.

Regarding GNC's letter of intent to pursue legal action, Mr. Hennion said in a statement: "GNC was proud and excited to launch our 'Courage to Change' campaign during the Super Bowl, one of the biggest platforms of the year. However only six days prior, and after two approval processes, Fox Broadcasting informed us that our company and our message of inspirational true stories was not permitted to air due to NFL policy. In turn, GNC has retained legal counsel and is in the process of preparing a formal complaint with Fox Broadcasting Company."

"Having the Courage to Change can mean many things and our customers exemplify that every day," the statement continued. "We strongly support the stories of change represented by the real people in our commercial, and we are committed to sharing that as broadly as possible."

Mike Duda, managing partner of Bullish, the agency tapped to handle creative duties for GNC's Super Bowl spot, told Ad Age in a statement: "It's one thing to have a spot not approved because of content; it's another thing when a business is singled out and blindsided post approval and contract."

Lindsay Stein is an agency reporter at Ad Age, mainly covering creative, digital and PR. Prior to Ad Age, she was a senior consumer marketing reporter at PRWeek. When she's not writing – or training for obstacle course runs – she's working on personal projects, including film production.